EWJ Dec 2023 - Journal - Page 10
Don’t be Tempted by this Common Delay
Tactic – it Will Get You Struck Off
by Jonathon Bray
Three solicitors have been struck off in quick
succession for strikingly similar offences: misleading
their clients about the progress of their case.
exactly crime of the century. However, the tribunal
found his behaviour to be dishonest and deliberate,
demonstrating a lack of integrity. That was enough to
end a career.
Andrew Mark Brett ‘repeatedly’ misled a client over
the progress of professional negligence litigation. He
pretended that court proceedings and hearings were
in progress, knowing that not to be the case. The
client’s claim was eventually struck out due to the
solicitor’s inaction.
So why do solicitors get tempted to mislead their
clients?
Returning to dishonesty in litigation case handling,
there are probably several reasons why a solicitor may
try to pull the wool over their client’s eyes.
Lesley Wilkinson was similarly struck off for misleading clients about their personal injury cases. Over a
three year period, the solicitor strung the clients along
when she knew the cases had been struck out. The
clients were only alerted when bailiffs appeared to enforce a costs order against them.
They may just be a bad apple, incompetent, or both.
Maybe sometimes that it is the case, but it is more likely
to involve more complex factors, such as:
l A heavy and unpredictable caseload. Litigation can
be stressful on many levels, but one of the most common is the unpredictability of proceedings. One case
might settle relatively quickly, whilst another may involve complicated points of law, multiple parties and
witnesses, and time intensive hearings and submissions (to name a few). Litigators can usually handle
more than one ‘big’ case, but what happens when others become unexpectedly demanding? This can be
compounded where the solicitor’s caseload is high,
leaving little room to breathe.
Albert Saul Bargery was struck off for forging a court
order and email to cover lack of progress on a low
value Japanese knotweed case. When the client complained about slow progress, the solicitor (presumably
to buy some time) produced a fabricated order purporting to compensate the client. When the client
chased for his damages, the solicitor compounded the
lie by producing a falsified email showing that he had
chased the other side for payment.
l Multiple demands. The client is just one
‘stakeholder’ that litigators have to deal with. Courts,
other parties, witnesses, experts and even their own
employers need to be kept at bay. All the while, there
may be other urgent directions and deadlines to be
met on separate cases. It is easy to see how facing
demands from all sides can result in a feeling of
drowning.
Principles
It is of course a serious breach of professional ethics to
lie to your client – or indeed anyone in connection
with your practice. The SRA codifies the core professional duties. The most relevant here are acting:
l in a way that upholds the constitutional principle of
the rule of law, and the proper administration of
justice;
l in a way that upholds public trust and confidence
in the solicitors’ profession and in legal services
provided by authorised persons;
l with honesty;
l with integrity;
l in the best interests of each client.
l Mental health. The knock-on consequence of the
demands of litigation can be the personal impact on
solicitors. It is a stressful job. Sometimes that boils over
to unmanageable levels, leading to anxiety, depression
and other conditions where it might become tempting
to take the path of least resistance. Disciplinary
tribunals are often presented with medical evidence.
l Competence. Less experienced lawyers thrust into
busy departments can sometimes sink. Particularly if
there is not much support available, everyone else
having their own caseloads to worry about.
A finding of dishonesty on its own will almost certainly
result in a strike off decision – there would have to be
exceptional circumstances to depart from that (Solicitors Regulation Authority v Sharma [2010] EWHC 2022
(Admin)). This is because solicitors are “trusted to the
ends of the earth” (Bolton v Law Society [1993]
EWCA Civ 32).
l Pride. Asking for help and admitting mistakes
doesn’t come easy for some people. It comes with the
risk of looking weak or incompetent in a traditionally
competitive profession. By the time these people
realise they are out of their depth, it may be too late.
An example of this in practice is the newly qualified
solicitor who was struck off for fare dodging, failing to
swipe in over a three month period. It was established
that the loss to the train company was around £650,
which was subsequently repaid by the solicitor. Not
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l Lack of supervision and support. We find ourselves
working in a more remote environment than ever before and many working routines have not returned
to ‘pre-covid’ practice. This may be more difficult for
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DECEMBER 2023